Buntyne v. Stone , 19 Ga. 78 ( 1855 )

By the Court.

Starnes, J.

delivering the opinion.

[1.] The bill of sale from Hay to Stone, was admitted to-record upon the affidavit of John McAlister, one of the two subscribing witnesses, who swore “ that he saw the subscribing witness subscribe.his name to the within bill of sale, and acknowledged for the within purposes.”

It has been thought doubtful whether, according to this phraseology, the witness refers to an acknowledgment by the other witness or by the grantor; and the bill in this case prayed for a construction, by the Court, of this affidavit.

It is our opinion that an acknowledgment of having signed the instrument by the maker of the deed, was meant. The phraseology is very informal, and was, no doubt, the work of an uneducated person. But the meaning seems to be determined by the fact, that there was nothing for the other witness to acknowledge. McAlister says that he saw him subscribe his name to the instrument. The acknowledgment, then, could only have been by the maker., And such, we-hold, is the construction to be placed upon it.

[2.] We think, therefore, that the Court erred in. over-ruling this demurrer—

1. Because that the allegations of the bill show a documentary title to the slaves in .question, which is not deficient on account of irregularity in the probate of the bill of sale, and of which it is our opinion that the defendants might have-availed themselves, in defence of the Common Law action.

2. Because they set forth such facts as, uneontroverted, appear to show that title to the slaves in question vested in. Thomas Stone, by virtue of the Statute of Limitations of our State; and this, too, we think might have been relied upon' in the Common Law action.

3. Because the facts relied upon as presenting an equitable bar, by reason of the lapse of time, and all other grounds • for equitable interposition, which are set forth in said bill,, are such as may be set up successfully as pleas to the Common Law action.

[3.] The Court below was right, in our opinion, in dismissing the bill as to David Johnson. According to the case made by that bill, he had relinquished all interest in the estaje of Wm. T. Hay. It is true, the bill alleges that Johnson was fraudulently combining with Buntyne to recover these slaves; but it does- not state that he had not executed-’ a’legal and bona fide release. On the contrary, it alleges that he had executed a release, merely for the purpose of' making himself a competent witness. Of course, if he had made himself a competent witness, he had released his interest ; and if he had released his interest, he should not have • been made a party.

If it was intended to rely upon the fact that his- release was a sham and a fraud, this should have been distinctly alleged and assigned as a reason why he was made a party.

Judgment reversed.